COURT FILE NO.: 326/03

DATE: July 21, 2003

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: THE CORPORATION OF THE CITY OF VAUGHAN, THE REGIONAL MUNICIPALITY OF YORK AND THE TORONTO AND REGION CONSERVATION AUTHORITY

Moving Parties

-and-

RIZMI HOLDINGS LIMITED AND LUCIA MILANI

Respondents

BEFORE: LAX J.

COUNSEL: N.J. Pepino, Q.C., & T. Halinski, for the City of Vaughan

J. A. Matera, for the Toronto and Region Conservation Authority

J.C. Grant, for the Regional Municipality of York

D. McCutcheon & A. Jeanrie, for the Respondents

HEARD: July 17, 2003

E N D O R S E M E N T

[1] This is a motion for leave to appeal to the Divisional Court from a Decision and Order of the Ontario Municipal Board denying a motion for an order that the Oak Ridges Moraine Conservation Act, S.O. 2001, c.31 (the “ORM Act”) and the Oak Ridges Moraine Conservation Plan (O.Reg. 140/02) (the “ORM Plan”) apply to matters before the Board. The matters consist of (i) three appeals by the respondents of Official Plan and Zoning By-law amendments which have the effect of prohibiting aggregate resource uses on their lands; and, (ii) a referral by the Ministry of Natural Resources of an application by the respondents for an aggregate resource license. The effect of the Board’s decision is to permit the respondents to proceed to a hearing before the Board on these matters.

[2] The motion before the Board turned on the interpretation of provisions of the ORM Act, and in particular, the meaning and application of the transition provisions in section 15 in relation to sections 7 and 8 of the Act. The Board found that “on a plain reading of the Act, Rimzi falls within the transition provisions and is entitled to a full and fair hearing of its appeals and referrals”.

[3] The applicants raise six issues for determination of the Divisional Court, which allege errors on the part of the Board in its interpretation of the provisions of the ORM Act and Plan, and its application to certain provisions in the Aggregate Resources Act, S.O. 1990, c.A.8. Subsection 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28, provides for an appeal, with leave, to the Divisional Court, on a question of law. The proposed appeal raises a question of law.

[4] To satisfy the test for granting leave, the applicants must show that there is a point of law of sufficient importance to warrant the attention of the Divisional Court and some reason to doubt the correctness of the decision of the Board: Toronto v. Torgan Developments (1990), 47 M.P.L.R. (2d) 7, 36 O.A.C. 318 (Div. Ct.); Juno Developments (Parry Sound) Limited v. Parry Sound (Town) (1997), 38 M.P.L.R. (2d) 133 (Div. Ct.).

Sufficient Importance

[5] The parties agree that the overarching purpose of the ORM Act and Plan is to protect the ecological integrity of the Moraine. They differ on the correct interpretation of section 8, which “guarantees the paramountcy of the Plan over all inconsistent zoning, official plan policies and Provincial Policy Statement policies” and how that section should be read in relation to section 7 and section 15 of the ORM Act. The Board accepted the respondents’ interpretation. It characterized its decision as a “threshold issue”. If the Board’s decision is correct, the respondents and all others who fall within the transition provisions under the Board’s interpretation of section 15, will be permitted to proceed to hearings before the Board on the merits of their appeals and/or references. There is no evidence about the number of applicants this may involve.

[6] In Concerned Citizens of King (Township) v. King (Township), [2000] O.J. No.3517 (Div. Ct.), Justice A. Campbell was faced with a motion for leave to appeal a decision of the Board which was alleged to have erred in its interpretation of the expression “have regard to” under the Planning Act, and in particular, whether it failed to “have regard to” provincial planning policy regarding the Oak Ridges Moraine. He stated:

… no Ontario court has previously considered the OMB’s interpretation of provincial planning policy on, and interest in, the Oak Ridges Moraine. The ecological integrity of the Oak Ridges Moraine, and the legal interpretation and application of the public instruments designed to protect it, raise important planning and environmental issues.

These concerns are recognized on a provincial level in the governmentally adopted policy statement and regionally and locally by incorporation of guidelines specific to the Moraine.

Legal issues of the kind referred to above are important to the approach taken by planners and by the OMB, in their task in interpreting and applying the Planning Act and planning instruments such as the Provincial Policy Statement and the Oak Ridges Moraine Guidelines.

[7] I agree with the above findings of Justice Campbell. Having concluded that this satisfied the requirement of public importance in regard to the Guidelines, the “importance” test is necessarily satisfied when the issues relate to the legislative and regulatory scheme that has now come into force on November 16, 2001. The ORM Act is important legislation. No court has had the opportunity to consider it. This warrants the attention of the Divisional Court. The moving parties have satisfied the first branch of the test.

Correctness

[8] In determining whether there is some reason to doubt the correctness of the Board’s decision, I am not required to either agree or disagree with it, but the applicants must show that it is open to serious debate: Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282. While I am inclined to agree with the Board’s interpretation of the sections in issue, the applicants have raised sufficient doubt about its correctness to satisfy the second branch of the test.

[9] I therefore grant leave to appeal on the issues set out in paragraph 8 of the Factum of the City of Vaughan. Costs, if any, of the motion for leave to appeal are reserved to the panel hearing the appeal.

LAX J.

DATE: July 21, 2003